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Legal Remedies for Domestic Violence in Chile and the United States: Cultural Relativism, Myths, and Realities Katherine M

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Legal Remedies for Domestic Violence in Chile and the United States: Cultural Relativism, Myths, and Realities Katherine M Case Western Reserve Journal of International Law Volume 26 | Issue 2 1994 Legal Remedies for Domestic Violence in Chile and the United States: Cultural Relativism, Myths, and Realities Katherine M. Culliton Follow this and additional works at: https://scholarlycommons.law.case.edu/jil Part of the International Law Commons Recommended Citation Katherine M. Culliton, Legal Remedies for Domestic Violence in Chile and the United States: Cultural Relativism, Myths, and Realities, 26 Case W. Res. J. Int'l L. 183 (1994) Available at: https://scholarlycommons.law.case.edu/jil/vol26/iss2/1 This Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Journal of International Law by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. Legal Remedies for Domestic Violence in Chile and the United States: Cultural Relativism, Myths, and Realities* Katherine M. Culliton* I. INTRODUCION*** This article addresses certain dilemmas created by applying cultur- al relativism to international women's rights. By closely examining the Chilean women's movement against domestic violence, this article also . This article has been reprinted in Spanish in La Revista Juridica de ]a Universidad Diejo Portales. All rights reserved by the Case Western Reserve Journal of International Law (1994). .. 1993-1994 Fulbright Grantee; J.D., Washington College of Law (1993) (valedictorian); 1992 O.A.S. Grantee, Inter-American Institute for Human Rights; 1991-1992 Ford Foundation Fellowship in International Law; B.A., University of Delaware (1984). During the Fulbright grant year, Ms. Culliton provided support, through legal analyses, articles, and public presentations and teaching sessions, for the Chilean women's movement to end domestic violence. Funding for the research and participation in human rights projects that supported this arti- cle was generously provided by the Fulbight Commission between Chile and the United States. The author wishes to thank the professional staff of the Chilean Fulbright Commission for their assistance and guidance. Professor Claudio Grossman, Director of the Graduate Studies Program of the Washington College of Law, is also much appreciated, for his valuable advice and consis- tent support for my projects. Special thanks is also owed to the many women's rights and human rights advocates in Chile who contributed to this article; they are too numerous to mention here, but are cited throughout the text of the article, and are enormously appreciated and admired. In Chile, Diego Portales University Law School, especially Professor Nancy de la Fuente, the University of Valparaiso Law School, especially Rector Agustin Squella, and the National Ministry for Women, especially Maria Elena Valenzuela and Jimena Ahumada, provided invaluable institutional support and resources. One truly appreciates the time shared, and the opportunity to learn through inter- change and a bit of participation. Many thanks, especially to the kind and professional support staff of these institutions. Finally, I am grateful to the editors and staff of Case Western Reserve Journal of International Law for their utmost professionalism, and for compiling, verifying, and improving a year's worth of drafts, along with citations in Spanish, as the legal and political situation we were addressing changed rapidly from Chile. Of course, any mistakes are mine. "" The Case Western Reserve Journal of International Law expresses its gratitude to Diane and Michael Otero, and also Victoria Scaravelli of Case Western Reserve School of Law for their translation and verification of the Spanish language sources cited herein, whose original translation was provided by the author. - Editor. At the time of publication, the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322 was enacted. [hereinafter The Crime Bill]. The Crime Bill incorporated many of the provisions of the U.S. Violence Against Women Act of 1991, including its civil rights provi- sions discussed extensively herein. - Editor. 183 CASE W. RES. J. INTL L. [Vol. 26:183 addresses the issue of whether and how international women's rights should vary based on local cultural norms. To this end, an interdisciplin- ary analysis of the Chilean legal system's treatment of violence against women is presented. For comparative purposes, the United States' legal mechanisms for dealing with domestic violence issues is also discussed. This comparison reveals that, in terms of institutional and structural problems, the two systems have more similarities than differences. This analysis focuses on domestic violence studies, legislative pro- posals and processes, case law, actors in the legal system,' and social, economic, and cultural factors.' This research demonstrates, among other things, that domestic violence is a problem of grave and epidemic pro- portions in both countries? Violence against women spreads across all classes in both societies, and affects about fifty percent of the women in each country.4 Furthermore, contrary to the prevalent myths about The Chilean legal system is a civil law system, significantly different from the United States' common law system in that cases are not the major source of law. Because the primary source of law in a civil law system is codified legislation, cases and judicial reasoning are not always well-documented or even reported. See JOHN H. MERRYMAN, THE CivIL LAW TRADITION: AN INTRODUCTION TO THE LEGAL SYSTEMS OF WESTERN EUROPE AND LATIN AMERICA 54-64 (1969) (detailing the superiority of codified legislation in a civil law system); id. at 144 (noting that stare decisis is not required); id. at 87-88 (describing the civil law tradition that judges should merely apply, not interpret, statutes); id. at 141-48 (noting the importance of doctrines on the application of legislation and legal theories, not necessarily case law, in a civil law system). See also Jorge Correa, La Cultura Juridica Chilena en Relacidn a la Funcidn Judicial, in LA CULTURA JURiDICA CmLENA 75-94 (Agustin Squella ed., 1992) (explaining that Chilean legal tradition tends to abscond judicial reasoning by setting forth decisions that "merely apply" legis- lation). For the above reason, evaluation of the Chilean law as it affects cases and the women victims of domestic violence who attempt to use the legal system stems from research of legal and interdisciplinary studies by women's rights agencies, news reports, interviews with those working with victims, and the little published case law that was available. See generally Sofia Vergara Aldunate, Gula Prctica para Ubicar las Fuentes Formales de Derecho 11-13 (describing current teaching materials at the Diego Portales University Law School which indicate that Su- preme Court and Appellate Court decisions are published; whereas opinions of lower tribunals are not necessarily published - and are generally unannotated when published - so that doc- trine and analysis become important sources to uncover jurisprudence) (on file with the Case W. Res. J. Int'l L.). 2 Research for this article was conducted in Chile from June to August 1991, and then updated from Chile from September 1993 to September 1994. Documents were gathered from Chilean governmental and non-governmental organizations working on domestic violence. Some of these organizations were international organizations, and many were women's rights organizations, but all focused on domestic violence. Also, interviews with Chilean activists, leaders of organiza- tions working on domestic violence, members of Congress, attorneys, judges, law professors and students, victims of domestic violence, and other Chilean women and men, were conducted. Findings from research in the United States were then used as points of comparison. See infra notes 97-119 and accompanying text. See infra notes 100, 105-06, 264-73 and accompanying text. DOMESTIC VIOLENCE IN CHILE AND THE U.S Latina women, many aspects of the problem cross the cultural and so- cial boundaries between Chile and the United States. In fact, the situa- tion of women in the United States sometimes compares unfavorably with that of Chilean women.5 The research further indicates that, in both countries, battered wom- en face nearly identical barriers to effective legal assistance, and that these barriers are inherent in each legal system.6 Since these institution- alized barriers to relief are present in both countries, each country's particular cultural, economic, and social factors associated with domestic violence would not preclude the enactment of substantive reforms de- signed to resolve problems in each of their legal systems. Therefore, the United States and Chile could share common solutions to the problems associated with the treatment of domestic violence cases within their respective legal systems. Coincidentally, new legislation in both coun- tries would attempt to remedy the domestic violence problem. In essence, the U.S. Violence Against Women Act and the Intrafamily Violence Act initiated by. the Chilean National Ministry for Women (SERNAM) would create similar remedies to mutual problems regarding each legal systems' treatment of domestic violence cases.7 The striking similarity of these solutions provides a means to strengthen international cooperation and expand the application of international human rights laws. A woman's fundamental right to effective
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